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EXTERNAL (for general distribution)
1989 campaign circular no. 26B
AI Index: AFR 53/20/89
Distr: SC/DP/CC/CO
_______________________
Amnesty International
International
Secretariat
1 Easton Street
London WC1X 8DJ July 1989
United Kingdom
THE DEATH PENALTY IN SOUTH AFRICA - UPDATE
In April 1989 Amnesty International issued an 11-page external document
dscribing the general use of the death penalty in South Africa ("South Africa:
The Death Penalty", AI Index: AFR 53/03/89). The present document contains
information which is more specifically about the use of the death penalty during
the first half of 1989.
Executions
Between 1 January and 30 June 1989 at least 34 people have been executed
in South Africa. The figures for January and February, with two executions
reported in January and none in February, suggested a move away from the high
execution figures of 1988 which averaged over two per week. However, this
encouraging trend did not continue, and there were seven executions in March,
10 in April, five in May, and 10 in the first 13 days of June.
Those executed include Sandra Smith, a 22-year-old mother of three children
executed on 2 June 1989. She was the first woman to be executed for over two
years. She was convicted for her alleged role in the murder of a 16-year-old
girl. They also include two white men, Anton Koen and James Henry Cohen, executed
on 24 May 1989. Anton Koen was sentenced to death in June 1988 in Port Elizabeth
Supreme Court for the murder of an elderly woman. All avenues of appeal available
to him had been exhausted. James Henry Cohen was convicted in Ladysmith in
September 1988 on charges of murder and robbery. The trial court granted him
leave to appeal but he is reported to have refused legal assistance and to have
expressed the wish to be executed.
Also executed was Mxolisi Isaac Tshongoyi, who was convicted of murder and
robbery in the Cape Town Supreme Court on 31 March 1988 and sentenced to death.
His execution had previously been scheduled for 24 November 1988 but he was
granted a last-minute stay of execution when it was learned that a petition on
his behalf to the Chief Justice, for leave to appeal against conviction, had
not been forwarded for consideration. This petition was subsequently turned
down. He then petitioned the State President for clemency but this petition
also failed and he was executed on 6 June 1989. His execution took place before
written notification of the failure of his clemency petition reached his lawyers.
His relatives had however been informed and received a rail ticket to enable
them to make a final visit to him.
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The Minister of Justice Mr H J Coetsee, speaking in Parliament, reported
that on 24 April 1989 there were 275 prisoners under sentence of death in Pretoria.
Of these, 256 were black (202 "African" men, one "African" woman, 51 "coloured"
men, one "coloured" woman, and one "Indian"), and 19 were white (all men).
No details are currently available on whether death sentences have been
carried out in South Africa's nominally independent "homelands" during the first
half of 1989.
Commutations
In the first five months of the year 37 prisoners were reported to have
had their death sentences commuted to terms of imprisonment.
On 1 March 1989 the death sentence imposed on Paul Setlaba in December 1986
was commuted to a period of 20 years' imprisonment. Paul Setlaba had been
convicted of murder for his alleged role in the killing of Julia Dilato in October
1985. Twice during 1988 his execution had been scheduled, but twice he was
granted last-minute stays of execution.
The second stay of execution, in
November 1988, was granted to permit the State President to examine a petition
for his trial to be reopened. This petition was supported by a sworn affidavit
in which it was claimed that the single witness at the trial on the basis of
whose evidence Paul Setlaba had been convicted had admitted subsequently that
he had lied to the court as a result of police coercion. Lawyers acting on behalf
of Paul Setlaba are reported to have obtained an affidavit from the witness in
question in which he retracted at least part of the evidence which implicated
Paul Setlaba in the murder. In light of the long prison sentence imposed on
Paul Setlaba following commutation of his death sentence, his lawyers are
considering whether further steps should be taken to present this new evidence
to the courts.
A number of trade unionists convicted in connection with murders which
occurred during strikes and industrial disputes have also had their death
sentences commuted. Stanford Ngubo, Johannes Buthelezi and Bethwell Sabelo,
all members of the Transport and General Workers Union (TGWU), and William
Khuzwayo, unemployed at the time of the offence, were sentenced to death in Durban
Supreme Court in August 1988 for their alleged role in the murder of a bus driver,
Retford Shezi, who continued to work during a strike in October and November
1986 in which over 200 drivers were suspended from work without pay for refusing
to collect fares. The court decided that William Khuzwayo fired the fatal shots.
The other three were convicted on the basis that they shared a common purpose
with him; they were alleged to have hired him to kill Retford Shezi. There had
been conflicting evidence about the defendants' presence at the scene of the
crime. However, the four were not allowed to lodge an appeal, and their petition
to the Chief Justice for leave to appeal was turned down in December 1988. On
25 May 1989 their death sentences were commuted. Stanford Ngubo, Johannes
Buthelezi and Bethwell Sabelo received sentences of 18 years' imprisonment;
William Khuzwayo received 20 years' imprisonment.
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Another trade unionist, Mazazile William Mntombela, had his death sentence
commuted on 18 May 1989 to 25 years' imprisonment. He was a dairy worker, a
member of the Commercial, Catering and Allied Workers Union (CCAWUSA), and was
shop steward during a strike in Johannesburg in 1986. He was convicted in
connection with the murder of two people at the height of the strike.
However, other trade unionists involved in similar incidents remain under
sentence of death.
Dilizintaba 'Lucky' Nomnganga, a National Union of
Mineworkers member, is under sentence of death for the murder of a mine engineer
and a mine security guard in June 1987, during a riot which followed dismissals
of miners. He was reportedly convicted on the basis of sharing a "common purpose"
with the mob which committed the murder. There was apparently no evidence that
he inflicted any of the fatal wounds, but he was alleged to have given a signal
which started the attack on the two victims. Four railworkers, members of the
South African Railway and Harbour Workers Union (SAHRWU), are also under sentence
of death. They were convicted in May 1988 of killing four men during a strike.
Appeal hearings and controversy over sentencing
In a number of cases convicted prisoners have had death sentences overturned
on appeal. On 30 March 1989 three men convicted of murder and arson in September
1987 had their convictions and sentences set aside by the Appeal Court. Another
such case involved three members of the National Union of Mineworkers, Tjeluvuyo
Mgedezi, Solomon Nongwati and Paulos Tsehlana. They were sentenced to death
in Klerksdorp Regional Court in May 1987 for the murder of four "team leaders",
supervisors of gangs of miners underground, at the Vaal Reefs gold mine in February
1986. Other defendants received terms of imprisonment. Tjeluvuyo Mgedezi, who
was chairperson of the shaft stewards committee at the mine at the time of the
murders, received the heaviest sentences - four separate death sentences for
the four murders and 15 years imprisonment for attempted murder. In September
1988 the Appeal Court in Bloemfontein heard their appeals. Solomon Nongwati's
appeal was successful; a conviction for public violence was substituted for
murder, and his death sentence was reduced to 30 days imprisonment. He had
already spent much longer than that in prison, and was released. Paulos Tsehlana's
appeal was also successful; all his convictions were set aside and he was released.
Tjeluvuyo Mgedezi was acquitted of two of his murder convictions, but the
remaining three convictions and sentences were upheld. In January 1989 he
petitioned the State President for clemency. On 18 May 1989 his death sentence
was commuted to 20 years imprisonment.
The successful appeals of people sentenced to death has highlighted the
discrepancies in sentencing which can occur even in cases where the defendant
faces the maximum penalty of death, and also called into question current appeal
procedures, which allow leave to appeal to be refused by trial judges.
The same judge whose sentencing of Tjeluvuyo Mgedezi, Solomon Nongwati and
Paulos Tsehlana to death was overturned on appeal was subsequently criticized
in public for the leniency of sentences which he passed on two white farmers
in November 1988 in the Louis Trichardt Circuit Court, in connection with the
death of a farm worker. The farm worker, Eric Sambo, had allegedly driven a
piece of farm machinery deliberately over a dog belonging to one of the farmers,
killing the dog. The two men tied him to a tree and assaulted him over a period
of two days, which resulted in his
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death. One, Jacobus Vorster, was found guilty of culpable homicide and was
sentenced to five years imprisonment, suspended for five years, a fine, and
monthly payments of 130 Rands to the victim's family. The other, Petrus Leonard,
was convicted of assault and fined 500 Rand. The Johannesburg Bar Council publicly
criticised the judge's decision in this case. Mrs Helen Suzman, then Member of
Parliament for the Progressive Federal Party, presented a petition to Parliament
in January 1989 in an attempt to have the judge removed. Her petition was turned
down, and a motion of censure subsequently brought before Parliament was rejected.
However, the ensuing controversy served to highlight discrepancies in sentencing
in this and other cases.
Public opposition to the death penalty
Campaigners against the death penalty within South Africa have continued
to appeal for clemency to be granted to individuals under sentence of death,
and for abolition of the death penalty.
In February 1989 the Black Sash published a report entitled "Inside South
Africa's Death Factory", which examines many aspects of the use of the death
penalty in South Africa. Organizations including Lawyers for Human Rights (LHR),
Families of People on Death Row (FOPOD) and the Society for the Abolition of
the Death Penalty in South Africa (SADPSA) have maintained a high level of
campaigning on behalf of all prisoners under sentence of death. Regular visits
have been made to prisoners under sentence of death, to monitor scheduled
executions and ensure that all possible legal avenues of appeal have been
explored. As a result of this monitoring program a significant number of prisoners
have received last-minute temporary stays of execution to allow further legal
avenues to be pursued.
There have been calls in Parliament from Democratic Party MPs for an inquiry
into a number of aspects of capital punishment, including its mandatory nature
where no extenuating circumstances are found, and the lack of an automatic right
of appeal. Member of Parliament Mrs Helen Suzman called on the government to
declare a moratorium on executions while an investigation is carried out. In
May 1989 Archbishop Desmond Tutu renewed his calls for an end to hanging and
a reprieve for all under sentence of death.
New death sentences
A number of cases in which the death sentence has been imposed have attracted
considerable public attention and helped to keep discussion of the death penalty
in public view. Further controversy has centred on the use of the doctrine of
"common purpose" in a number of murder cases as a basis for the conviction of
members of a crowd or mob. On 5 June 1989 16 people were convicted in Bisho,
in the nominally independent "homeland" of Ciskei, of the "necklace" murder of
five young men in February 1987. The 16 were found to have abducted six youths
from Mdantsane, a township in the
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"homeland" close to East London, at a time of disturbances in the township. One
youth survived the attack. During disturbances in the mid-1980s a number of
murders of this sort occurred: victims had petrol-soaked tyres placed over their
heads and set alight. The 16 were convicted on the basis of sharing a "common
purpose", as they were allegedly part of a mob that carried out the murders.
Extenuating circumstances were found in relation to four of the defendants, and
they received 20-year prison sentences. In the other 12 cases no extenuating
circumstances were found and on 6 June 1989 all 12 were sentenced to death.
They were granted leave to appeal and the appeal hearing scheduled for early
August 1989.
Despite the commutation in November 1988 of death sentences imposed on the
"Sharpeville Six" - six people convicted of involvement in the killing in
September 1984 of the Deputy Mayor of Sharpeville - Amnesty International remains
concerned that the legal precedents established by the case remain unchallenged.
Those legal precedents are the broad interpretation of the doctrine of "common
purpose" as a basis for bringing in convictions of murder in cases of killings
occurring in the presence of a crowd of people, and the failure of the trial
court to conclude that extenuating circumstances existed in such a case.
In a case which has attracted considerable international attention, 26
people from the Northern Cape town of Upington were found guilty in April 1988
of complicity in murder. The murder took place in November 1985 in Paballelo,
a black township of about 10,000 people outside the white town of Upington.
The murder occurred after the security forces had broken up with teargas a meeting
of some 5,000 people in the township, protesting about living conditions and
rent increases. A crowd of about 300 then attacked the home of a municipal police
officer, unpopular because he and three other officers had allegedly shot and
killed a pregnant woman three days before. The police officer, Lucas Tshenolo
"Jetta" Sethwala, oponed fire with a shotgun at the crowd stoning his house,
wounding a small boy. He was chased from the house by the crowd, and an hour
later was killed by two blows from his own firearm. His body was then set alight.
Only one defendant, who pleaded not guilty, was found to have delivered
the blows which killed "Jetta" Sethwala.
Three others were identified as
"principal offenders" for their role in assaulting the body of the deceased after
he was dead. However, 25 defendants in all were convicted of murder on the basis
of "common purpose", because they had taken part in throwing stones at the dead
man's house. The twenty-sixth defendant was convicted of attempted murder.
Of the 25 convicted of murder, 14 were sentenced to death on 13 May 1989. The
remaining 12 defendants were sentenced to terms of imprisonment, in some cases
suspended and coupled with periods of community service. On 27 June 1989 the
trial court refused the 14 leave to appeal against their death sentences. They
were granted 21 days in which to lodge a petition against this decision.
Amnesty International is concerned at the imposition of death sentences
on so many people convicted of murder under the "common purpose" doctrine,
whereby, although many of the accused may not have taken part in an actual killing,
the fact that they were present at incidents which preceded the murder by as
much as an hour has been held by the courts to be sufficient evidence of their
complicity in murder. There is also concern
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with regard to the personal circumstances of some of the individuals convicted.
Those sentenced to death in Upington include an elderly couple aged in their
sixties, who have 10 children, and a young man who was deemed sane to stand trial,
but who was reportedly assaulted by the police in Cape Town while awaiting
psychiatric observation.
The judge found that there were no extenuating
circumstances in the cases of any of the 14 sentenced to death, and their sentences
were therefore mandatory under South African law. In the cases of the 11
convicted of murder but not sentenced to death, the judge appears to have accepted
that youth or "limited intelligence" constituted extenuating circumstances.
The prosecution conceded that there were extenuating circumstances in the case
of the elderly male defendant, but this was overruled by the judge.
Amnesty International is concerned at the continuing use of the death penalty
in South Africa in the first half of 1989. The organization is appealing to
the South African authorities urgently to declare a moratorium on executions;
and to set up a judicial commission of inquiry to examine the use of the death
penalty. It has suggested that a commission should examine issues such as:
- the mandatory nature of the death penalty in murder cases where no
extenuating circumstances are found; - the lack of automatic right of appeal
against a sentence of death; - lengthy incommunicado pre-trial detention of
defendants and witnesses,
and the appropriateness of admitting statements which may have been given
under duress, in trials which may end in the defendant being sentenced to
death; - the role of court-appointed lawyers in cases where the defendant may
face
the death penalty, and the particular importance of the appeal process in
such cases; - discrepancies in sentencing; and - the role of the Department
of Justice in processing petitions.
Amnesty International has urged that the proceedings of such a commission should
be conducted openly and its findings made available to the public.
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INTERNAL (for AI members only)
1989 campaign circular no. 26B
AI Index: AFR 53/20/89
Distr: SC/DP/CC/CO
_______________________
Amnesty International
International
Secretariat
1 Easton Street
London WC1X 8DJ July 1989
United Kingdom
BACKGROUND AND RECOMMENDED ACTIONS FOR APPEALS TO SOUTH AFRICA
DURING CAMPAIGN PHASE TWO (September-December 1989)
South Africa is being featured for appeals (Category A) during AI's 1989 campaign
against the death penalty. Recommended actions and addresses were given in
campaign circular no. 17D, AI Index: AFR 53/05/89.
This
circular
gives
recommended
actions
for
campaign
phase
two
(September-December) in light of any developments in the country. It should be
used together with the EXTERNAL part of the circular, which updates the
information in campaign circular no. 16D, "The Death Penalty in South Africa",
AI Index: AFR 53/03/89.
RESPONSE FROM THE COUNTRY TO AI'S CAMPAIGN
The release of AI's death penalty report was reported in the press, with reference
to AI's concerns about use of the death penalty in South Africa. It is still
too early to have seen direct responses to letter-writing. (Sections should ensure
that any responses received are being copied to the Research Department (Southern
Africa) for advice.) Some organizations within South Africa have requested AI
materials on the death penalty for use in their own work.
PROGRESS TOWARDS CAMPAIGN OBJECTIVES
The Minister of Justice has been reported in the press as saying, during debate
in Parliament in April 1989 on the justice budget vote, that the government were
"sensitive" to the question of capital punishment and that he was '"open to
suggestions" for revisions of the death penalty'.
It may be that some
consideration is being given to the possibility of introducing some reforms to
the law, such as in relation to the mandatory nature of the death penalty and
the lack of automatic right of appeal. However, no concrete, public steps have
been taken so far.
^pg NEW MATERIALS AVAILABLE
UAs issued so far: AFR 53/13/89 (update to AFR 53/10/88 and AFR 53/35/88) - the
"Addo Four" AFR 53/16/89 - Leonard Sheehana AFR 53/18/89 - the "Upington 26"
AFR 53/23/89 - the "Bisho 12"
and UAs issued by telex only, on 7 March 1989; 15 March 1989; 24 April 1989;
22 May 1989; 1 June 1989; and 6 June 1989; and their updates. These telexed
UAs were not printed for general circulation, and were telexed only to selected
sections which were asked to appeal.
Please look out for further UAs as campaign continues.
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NEW POINTS FOR APPEALS
Please continue appeals as outlined in AFR 53/05/89, using the additional material
contained in this external update to support your arguments.
Where a maximum number of letters has been set for a category of addressees,
you should not send further appeals. Where there is no maximum, however, you
may send a second letter if you have not received a reply to your first letter,
reiterating your concerns.
Information on the death penalty in the nominally independent "homelands" is
not available at present, apart from the recent case of 12 people sentenced to
death in Bisho, Ciskei (see external document).
The additional information given in this external update may be used in your
letters to support your appeals. In particular you may include in your letters
appeals for the "Upington 14" and the "Bisho 12".
OTHER RECOMMENDED ACTIONS
Appended to the external update is a list of the names of those reported to have
been executed from January to June 1989. These names and dates of executions
may be used to help in your campaigning.
You can give the update to journalists suggesting they do a story on the death
penalty in South Africa. A good time for this may be the Week of Action Against
Executions (20-27 September), during which AI sections around the world will
be collecting signatures and sending appeals to the authorities of South Africa
and several other countries to stop executions.
CORRECTIONS TO LIST OF ADDRESSES
A general election has been scheduled for 6 September 1989. State President
P W Botha and five cabinet ministers have announced their retirement. There
will therefore be major changes to the government authorities list, and sections
will be sent a new list as soon as it is available.
Please note that Dr J C Heunis, Minister of Constitutional Development
and Planning, and formerly Acting State President, has retired as from
1 July 1989.
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A P P E N D I X
EXECUTIONS REPORTED FROM 1 JANUARY TO 30 JUNE 1989
January (total = 2)
Bakiri Nelson
Johannes Mangate
13/1/89
13/1/89
March (total = 7)
Joseph Letsiri
Benfisius Sekgothe
David Themba Kekana
Jacobus Konzie
Raymond Shozi
Joseph Madonsela
Jabulani Nkosi
9/3/89
9/3/89
14/3/89
14/3/89
14/3/89
17/3/89
17/3/89
April (total = 10)
M B Ngcobo
Ndumiso Silo Siphenuka
Makhezwana Menze
Mlandeli Bobby Lesiti
Mxolisi Barnse
Leonard Adriaanse
Paulus Dube
Buthi Mokoena
David Millar
Raymond Ntshangase
5/4/89
20/4/89
20/4/89
25/4/89
25/4/89
25/4/89
26/4/89
26/4/89
26/4/89
26/4/89
May (total = 5)
Anton Koen
James Henry Cohen
Simon Mbatha
Patrick Mosomi
Abraham Mngomezulu
24/5/89
24/5/89
25/5/89
25/5/89
25/5/89
June (total = 10)
Jassim Harris
2/6/89
Sandra Smith
2/6/89
Michael Erasmus
2/6/89
Jacob Ndaba
2/6/89
Mxolisi Isaac Tshongoyi
6/6/89
Keith Simmons
8/6/89
Thomas Sibisi
8/6/89
Solomon Mhlanga
8/6/89
Michael Morris
13/6/89
Uithaler
13/6/89
February (total = 0)
(This list represents only cases reported to Amnesty International.
incomplete.)
It may be
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AMNESTY INTERNATIONAL
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COUNTRY: SOUTH AFRICA
SUBJECT TITLE: THE DEATH PENALTY - UPDATE
JULY 1989
SUMMARY
AI INDEX: AFR 53/20/89
DISTR: SC/DP/CC/CO
In April 1989 Amnesty International issued an 11-page external document
describing the general use of the death penalty in South Africa - South Africa:
The Death Penalty (AI Index: AFR 53/03/89).
The present document contains information which is more specifically about
the use of the death penalty in South Africa during the first half of 1989.
Between 1 January and 30 June 1989 at least 34 people were executed in South
Africa and death sentences have continued to be handed down by the courts. In
May 14 people from Upington in the Northern Cape were sentenced to death for
the murder of a police officer on the basis of having shared a "common purpose"
to murder him. In June 12 people were sentenced to death in Bisho, in the
nominally independent "homeland" of Ciskei, in a similar case. Thirty-seven
prisoners are reported to have had their death sentences commuted to terms of
imprisonment during this period. A number of organizations and individuals
within South Africa have campaigned steadily against executions and for abolition
of the death penalty, keeping the issue in public view.
This summarizes a 6-page document, South Africa: The Death Penalty - Update
(AI Index: AFR 53/20/89) issued by Amnesty International in July 1989. Anyone
wanting further details or to take action on this issue should consult the full
document.
INTERNATIONAL SECRETARIAT, 1 EASTON STREET, LONDON WC1X 8DJ, UNITED KINGDOM
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